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TMI Blog2025 (3) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, and thus service on any of the partners would be adequate and valid service on the appellant firm, however, the service on the daughter of a partner cannot be a valid service unless she is an authorised agent of the Firm in terms of Sub-section (1) to Section 37 C of the Central Excise Act, 1944.
Conclusion - The order served after a delay of almost four months, that too on the daughter of a partner of the firm, certainly, cannot be termed as effective service in the absence of any finding that the daughter Ms. Vaibhavi is an authorised agent of the appellant for the purposes of Section 83 of the Finance Act, 1994, read with Section 37C of the Central Excise Act, 1944.
The order of the First Appellate Authority - Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 30.01.2023 (copy enclosed as Annexure-IV) was served on them. (c) Thereafter, the Appellants sought details under RTI Act (copy enclosed as Annexure-V) with respect to the following: 1) Date of passing the Order-in-original No.16/2021-JC by the Joint Commissioner of GST & CE, Chennai South Commissionerate. 2) When was the document (mentioned to point (1) above) dispatched. 3) When was the document (mentioned to point (1) above) delivered to the assessee and the name of the person who has received the same? 4) Copy of document supporting point (3) (above)? 5) In case of delay over 15 days in dispatching the Order-in-Original No.16/2021-JC, the reasons thereof? d) On the same time, the Appellant was informed by the daughter of partner that the said OIO has been found in the academic books and she volunteered to courier the same 22.2.2023 which was received by the Appellant on 23.2.2023 (copy of the tracking slip is enclosed as Annexure VI) supporting the movement of courier. e) In view pressure from the departmental officers for payment of the amount confirmed, the appellants are left with no other option but to file the statutory appeal before the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to be filed in W.P.17602 of 2024, which was rejected on the ground that the appellant had not availed of the statutory remedy by way of appeal within the prescribed period of limitation, in terms of Section 85 (3A) of the Finance Act, 1994, read with Section 37 C of the Central Excise Act, 1944. It is against the above order of the learned Single Judge, the present appeal has been filed. 7. It is not in dispute that the impugned order has been served on Ms.Vaibhavi, daughter of one of the partners. Against the above background question arises as to whether such service would be a valid service for the purposes of Section 83 of the Finance Act, 1994, read with Section 37C of the Central Excise Act, 1944. The said Section reads thus: "Service of decisions, orders, summons, etc.- 37C. (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, - (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due [or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, for the purposes of Section 83 of the Finance Act, 1994 read with Section 37C of the Central Excise Act, 1944. The onus is on the revenue to show/prove service was validly made in accordance with procedure under the Act. There is sufficient judicial authority for the proposition that the burden of showing that service of notice has been effected on the assessee or his duly authorized representative is on the Revenue [Fatechand Agarwal v. CWT; [1974] 97 ITR 701; (Orissa) and Venkat Naicken Trust v. ITO; [1999] 107 Taxman 391 (Mad); CIT v. Thayaballi Mulla Jeevaji Kapasi; [1967] 66 ITR 147 (SC); Rambhai Mafatlal Patel v. ITO; (2021) 18 ITR-OL 36], which remains undischarged in the present case. 9. The learned Counsel for the appellant would place reliance on the decision of the Supreme Court in Saral Wire Craft (P) Ltd. vs. Commissioner of Customs, Central Excise and Service Tax, (2015) 14 SCC 523, wherein while dealing with Section 37C of the Central Excise Act,1944, it was found that service of order/summons on a kitchen boy may not be a valid service in terms of Section 37C of the Central Excise Act, 1944. The relevant paragraphs of the decision of the Supreme Court after ext ..... X X X X Extracts X X X X X X X X Extracts X X X X
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